01980520
12-11-1998
Fatma M. Schuring, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Fatma M. Schuring v. Department of the Army
01980520
December 11, 1998
Fatma M. Schuring, )
Appellant, )
)
v. ) Appeal No. 01980520
) Agency No. 09706H0300
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The agency failed to supply a copy of a
certified mail return receipt establishing the date appellant received
the agency's final decision. The appeal was postmarked October 21, 1997.
Accordingly, since the agency failed to supply documentation from which
the Commission could determine the date appellant received the final
decision, the Commission presumes that appellant's appeal was timely
filed. See 29 C.F.R. �1614.402(a). The appeal is accepted in accordance
with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint as untimely.
BACKGROUND
Appellant contacted an EEO counselor on March 6, 1997<1>, regarding
allegations of discrimination. Specifically, appellant alleged that
(1) on November 13, 1996 she was openly humiliated in a staff meeting;
(2) on December 20, 1996 she was told "maybe you should be looking for
another job"; and (3) she is treated with disrespect and that since 1994
through the present she has been tasked to perform GS-12 jobs without
promotion to an upper grade.
The EEO Counselor's Report (ECR) lists four other allegations of
discrimination for which appellant apparently received counseling.
However, appellant's formal complaint only referred to three of the
allegations discussed in the ECR. Informal efforts to resolve appellant's
concerns were unsuccessful. Accordingly, on May 22, 1997, appellant
filed a formal complaint alleging that she was the victim of unlawful
employment discrimination on the bases of national origin (Turkish)
and sex (female). Appellant's complaint referred to allegations (1),
(2) and (3) above; however, appellant's complaint failed to indicate
the dates on which said allegations occurred.
By letter dated July 1, 1997 the agency requested clarification
of the issues in appellant's formal complaint. Specifically, the
agency requested that appellant provide the precise dates on which the
alleged incidents of discrimination occurred. Appellant responded to
the agency's request by providing a copy of an e-mail message from her
supervisor dated February 20, 1997. The content of the e-mail message
is unrelated to appellant's allegations, however, at the bottom of the
copy was a hand written note from appellant indicating that on February
20, 1997 she was told that maybe she should look for another job.
Appellant further stated in her response to the agency's request for
clarification, that her complaint did not concern a one time occurrence.
Rather, appellant indicated that she has been subjected to continuous
abuse, a hostile work environment and "unbelievable stress" as a result
of the agency's actions.
On September 5, 1997, the agency issued its final decision accepting
allegation (3) of appellant's complaint but dismissing allegations (1) and
(2) as untimely. Specifically, the agency determined that appellant's
March 6, 1997 EEO contact concerning allegations (1) and (2) was well
beyond the time limitations prescribed in EEOC Regulations.
ANALYSIS AND FINDINGS
Upon review of the entire record, including the ECR, appellant's
formal complaint, and appellant's response to the agency's request for
clarification, the Commission determines that appellant is alleging that
she has been subjected to a hostile work environment and that the agency
has engaged in ongoing discrimination against her beginning in 1994 and
continuing through the present.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within forty-five
(45) days of the effective date of the action. The Commission has
adopted a "reasonable suspicion" standard (as opposed to a "supportive
facts" standard) to determine when the forty-five (45) day limitation
period is triggered. See Ball v. USPS, EEOC Request No. 05880247
(July 6, 1988). Thus, the limitations period is not triggered until a
complainant reasonably suspects discrimination, but before all the facts
that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency shall extend the time limits when
the individual shows that s/he was not notified of the time limits and
was not aware of them, that s/he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence s/he was prevented by circumstances beyond
her/his control from contacting the Counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
The Commission has also held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor.
See McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December
28, 1990); Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April
6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary
to determine whether the acts are interrelated by a common nexus or
theme. See Vissing v. Nuclear Regulatory Commission, EEOC Request
No. 05890308 (June 13, 1989); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990); Maldonado v. Department of
the Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant. Scott
v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered
an employee's awareness and duty to assert his or her rights; and,
whether the same agency officials were involved. Woljan v. Environmental
Protection Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27,
1997).
After a review of the record, the Commission finds that the agency erred
by dismissing allegations (1) and (2) for untimely counselor contact.
We find that allegations (1) and (2) are examples of the alleged
discriminatory hostile environment and are timely under the continuing
violation theory. Here, appellant alleges continuing discrimination
on the part of the agency as far back as 1994 to as recent as December
20, 1996. Allegations (1) and (2) are related to the accepted allegation
(3) and should be investigated with allegation (3).
CONCLUSION
Accordingly, the agency's decision to dismiss a portion of appellant's
complaint as untimely was improper and is hereby REVERSED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. If you file a civil action, YOU MUST NAME
AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY
HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME
AND OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
December 11, 1998
_________________________ ___________________________________
DATE Ronnie Blumenthal, Director
1We note here that the Counselor's report indicates April 10, 1997 as the
date of initial EEO contact while other documents of record including
the FAD and correspondence from the appellant indicate March 6, 1997
as the date of contact. The Commission will consider March 6, 1997 as
the date of appellant's initial EEO contact.